This
matter is before the Court on limited remand from the Eighth
Circuit Court of Appeals. For following reasons, Consumer
Plaintiffs' renewed Motion to Certify Class in Accordance
with Limited Remand Order is granted.

BACKGROUND

On
November 17, 2015, after nearly two years of litigation, this
Court approved the settlement of the consumer cases in this
multi-track Multi-District Litigation arising out of a
massive data breach that involved tens of millions of Target
customers' personal financial information. (Docket No.
645.) In doing so, the Court overruled the objections of
Objector Leif Olson (Docket No. 513) that the settlement
class was not appropriately certified under Rule 23. Olson
appealed, and the Eighth Circuit Court of Appeals determined
that this Court's evaluation of class certification was
not the “rigorous analysis” that precedent
required. In re Target Corp. Customer Data Sec. Breach
Litig., 847 F.3d 608, 612 (8th Cir. 2017). The Eighth
Circuit thus remanded the matter for a more detailed analysis
of one of Olson's objections to certification,
specifically whether class representatives and class counsel
can adequately represent the class as a whole.[1]

As the
Eighth Circuit stated, this Court must “evaluate upon
remand” the following issues:

First, whether an intraclass conflict exists when class
members who cannot claim money from a settlement fund are
represented by class members who can. Second, if there is a
conflict, whether it prevents the class representatives
“from fairly and adequately protecting the interests of
all of the class members.” Third, if the class is
conflicted, whether the conflict is “fundamental”
and requires certification of one or more subclasses with
independent representation.

Id. at 613 (citations omitted).

Plaintiffs
then brought a renewed Motion to Certify Class in accordance
with the limited remand. Olson opposes the Motion. The Court
held a hearing on the Motion on May 10, 2017, at which
Plaintiffs, Olson, and Target weighed in on the issues.

DISCUSSION

A.
The Class and Settlement

The
class as preliminarily and finally certified consists of
Target customers in the United States “whose credit or
debit card information and/or whose personal information was
compromised as a result of the [December 2013] data
breach.” (Docket No. 645 at 1.) The parties estimate
that the personal information of nearly 100 million American
consumers was compromised in the breach.

Target
agreed to settle the consumers' claims by paying $10
million directly to class members, instituting substantial
reforms to prevent the occurrence of another data breach,
paying all expenses of class notice and settlement
administration in addition to the $10 million settlement
payment, and paying attorney's fees of slightly less than
30% of the total fund-also separate from the $10 million
settlement payment.

The
settlement provides for consumers to be reimbursed for all of
their documented losses from the Target data breach, up to a
maximum of $10, 000.[2] Customers who did not suffer any direct
loss but who purchased identity theft protection or credit
monitoring services after the data breach are eligible for
reimbursement of those expenses. And, once all claims and
class representative service awards are paid, the settlement
funds will be distributed on a pro-rata basis to individuals
who do not have any documented proof of loss. At the time of
the final settlement approval hearing, Consumer Plaintiffs
estimated that such payments would amount to approximately
$40 per claimant.

Since
the November 2015 settlement approval, more than 225, 000
individuals have submitted claims for reimbursement under the
settlement. No claims have yet been paid, however, because of
the pending appeals by Olson and one other objector.

B.
Rule 23

A
district court may not certify a class until it “is
satisfied, after a rigorous analysis, ” that Rule
23(a)'s certification prerequisites are met. Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011) (quoting
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161
(1982)) (internal quotation marks omitted). Consistent with
the Supreme Court's premise that “actual, not
presumed, conformance with Rule 23(a) remains . . .
indispensable, ” Falcon, 457 U.S. at 160,
after initial certification, the duty remains with the
district court to assure that the class continues to be
certifiable throughout the litigation, Petrovic v. Amoco
Oil Co., 200 F.3d 1140, 1145 (8th Cir. 1999). See
also Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1214
(6th Cir. 1997) (“The district court's duty to
assay whether the named plaintiffs are adequately
representing the broader class does not end with the initial
certification . . . .”). Where, as here, adequacy of
class representation is at issue, “close
scrutiny” in the district court is even more important
given the need to protect the due process rights of absent
class members. See Rattray v. Woodbury Cnty., 614
F.3d 831, 835 (8th Cir. 2010).

In
re Target, 847 F.3d at 612. As the Eighth Circuit
repeatedly emphasized, this Court must conduct a
“rigorous analysis” of the requirements for class
certification. That analysis must examine whether the named
representatives have common interests with the class, and
whether those representatives will prosecute those interests
vigorously through class counsel. Id. (citing
Fed.R.Civ.P. 23).

1.
Intra-Class Conflict

There
are two components to the class-conflict analysis. First is
whether there are class representatives who have suffered the
same or similar injury as the class members they seek to
represent. Second is whether some class representatives and
class counsel have interests that are so at odds with other
class representatives and class members that a singular class
is inappropriate.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The
class representatives in this case include individuals who
suffered no demonstrable or quantifiable injury. Indeed,
there are numerous class representatives who, like Olson,
allege only that their personal information was stolen in the
data breach and do not allege any other element of damages.
(See, e.g., 1st Am. Compl. (Docket No. 258)
&para;&para; 35, 36, 45, 64, 65, 66; see also Esades
...

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